The GOP vs. gay rights

Susan Walsh / Associated Press

As the Senate was preparing to advance the Employment Non-Discrimination Act, House Speaker John A. Boehner's office announced that "the speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs."

As the Senate was preparing to advance the Employment Non-Discrimination Act, House Speaker John A. Boehner's office announced that "the speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs." (Susan Walsh / Associated Press)

In the latest example of the profound change in Americans' attitudes toward homosexuality, the Senate is moving toward a vote on a bill that would outlaw job discrimination on the basis of sexual orientation and gender identity. But whether the Employment Non-Discrimination Act becomes law could depend on whether the Republican leadership in the House decides to alienate the very voters it will need to attract to remain competitive on a national level.

Initial indications are that the Republicans, who sullied their brand with last month's disastrous shutdown of the federal government, may sabotage both the bill known as ENDA and their own prospects. As the Senate was preparing to advance the measure, House Speaker John A. Boehner's office announced that "the speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small-business jobs."

The fear is that Boehner (R-Ohio) will prevent the bill from coming to the floor by invoking the so-called Hastert Rule, named after former Speaker Dennis Hastert, under which legislation is not brought to a vote unless it is supported by the majority of the Republican conference. If Boehner blocks a vote, it might not hurt individual Republicans in reliably red districts. But it would associate the national party with a form of bigotry that increasingly both baffles and offends Americans across the board, but especially younger voters, including many who might otherwise be receptive to a Republican message.

That fact wasn't lost on the seven Republican senators who joined 54 members of the Democratic caucus on Tuesday to begin formal consideration of ENDA. Sen. Mark Steven Kirk ( R-Ill.), who spoke on the Senate floor for the first time since suffering a stroke in 2012, said that "it's particularly appropriate for an Illinois Republican to speak on behalf of this measure, in the true tradition of Everett McKinley Dirksen and Abraham Lincoln, men who gave us the 1964 Civil Rights Act and the 13th Amendment to the Constitution." Alas, most of Kirk's fellow Republicans opposed moving ENDA forward.

It's some comfort that Boehner and some other congressional critics of ENDA are eschewing the sort of homophobic bile that has greeted gay rights proposals in the past. Instead, they are resorting to specious arguments about bureaucracy and frivolous lawsuits (arguments that also could have been made against laws barring racial and religious discrimination).

Other opponents, however, are framing their opposition in familiar culture war terms. Heritage Action, the political arm of the Heritage Foundation, warns darkly that ENDA would "trample on religious liberty" (never mind that the legislation contains an already over-broad exception for religious employers that may be expanded even further) and that it would force businesses to "adopt the government's values which are based on a vague, subjective definition of 'gender identity.'"

Tony Perkins of the Family Research Council offers this nightmare scenario if ENDA is enacted: "Homosexuals and transgenders will use this law to marginalize Christians and take over the marketplace — until only their 'lifestyle' is promoted. ENDA isn't about tolerance; it's about a nationwide celebration of unlimited sexual expression."

To understand that this is nonsense, one need only look to the states that have adopted legislation similar to ENDA. Twenty-one states and the District of Columbia now prohibit job discrimination on the basis of sexual orientation. Seventeen states (including California) and the District of Columbia also ban discrimination on the basis of gender identity. Religious liberty in these places has not been eviscerated, nor have workplaces succumbed to orgiastic excess.

Important as these state and local laws may be, they don't provide the comprehensive coverage that federal legislation would ensure. Does Boehner really intend to prevent ENDA from receiving an up-or-down vote, an act of obstructionism that would solidify the party's reputation for hostility to fair treatment for gays and lesbians? We'll soon find out.